Research Briefing

As Obama Searches For New Supreme Court Justice,

Will Obama Choose An “Unabashed Liberal”

Like His Nominee To Ninth Circuit Court Of Appeals?

“The Effort To Confirm Mr. Liu … Whose Confirmation Hearing Is Scheduled For Friday, Has Become The Toughest Fight Over Any Of Mr. Obama’s Appeals Court Nominees. It Could Be A Harbinger For How A Strongly Liberal Pick To Succeed Justice John Paul Stevens Would Play Out.” (Charlie Savage, “Appeals Court Nominee Ignites A Partisan Battle,” The New York Times, 4/12/10)

“UNABASHED LIBERAL” LIU SAYS IT’S FAIR TO ASK JUDGES ABOUT THEIR LEGAL VIEWS

Associated Press: “Goodwin Liu, 39, Is An Unabashed Liberal Legal Scholar Who, If Confirmed, Could Become A Force On The Federal Appeals Court For Decades …” (Mark Sherman, “Young Appeals Court Nominee Raises Liberal Hopes,” The Associated Press, 3/13/10)

Liu Believes That Judges Should Be Asked How They Would “Interpret The Constitution And Its Basic Values.”  “But a Supreme Court nominee must be evaluated on more than legal intellect. Because he would sit with life tenure on the nation’s highest court, it’s fair and essential to ask how he would interpret the Constitution and its basic values. Americans deserve real answers to this question, and it should be the central focus of the Senate confirmation process.” (Goodwin Liu, “Roberts Would Swing The Supreme Court To The Right,” Bloomberg, 07/22/05)

WHEN IT COMES TO LIU’S LEGAL VIEWS

HE SEES CONSTITUTION AS SET OF GUIDELINES, NOT LAW OF THE LAND

Liu Thinks Judges Should Interpret Constitution “In Light Of Evolving Precedent, Historical Experience, Practical Consequence, and Societal Change.” “But the overarching question it poses is not simply how the Constitution would have applied during the Framing era, but rather how it should apply today in order to preserve its meaning and authority in the light of evolving precedent, historical experience, practical consequences, and societal change.” (Goodwin Liu, Pamela Karlan, Chistopher Schroeder, “Keeping Faith With The Constitution,” p. 5, American Constitution Society, 2009)

Liu Believes Judges Should Take Into Account “Evolving Norms And Social Understandings” And Be “Broad-Minded In Their View” And “The Kinds Of Sources” They Use To Interpret The Constitution. “…the reality is, every judge really knows and every lawyer really knows, is that the job…involves fundamentally, acts of judgment…And how do people come at their judgments?....lessons learned from experience, and an awareness of the evolving norms and social understandings of our country….So I would hope that the Obama administration would appoint judges who are broad-minded in their view of the kinds of sources that are legitimate to take into account in reading, especially the Constitution, but broadly legal texts of all sorts.” (Goodwin Liu, “Prof. Goodwin Liu Interviewed At White Oak,” The Brennan Center For Justice, 05/05/09)

Liu Says Judges Shouldn’t Look To Text Of Constitution When Making Decisions, But Take Into Account “Entire Range Of Experiences That The Nation Has Itself Learned.” “And I think that to say that all we do is we look at the texts and we read the words literally or all we do is we look at the texts and ask how did the people in 1789 or the people in 1868 understand it, that I think misses an entire range of experiences that the nation has itself learned.” (Goodwin Liu, “Prof. Goodwin Liu Interviewed At White Oak,” The Brennan Center For Justice, 05/05/09)

LIU WANTS TO INSTITUTE LIBERAL VISION OF CONSTITUTION AS A JUDGE

Liu Believes Obama’s Election Has Given Liberals “The Opportunity To Actually Get [Their] Ideas And The Progressive Vision Of The Constitution And Of Law And Policy Into Practice.” “‘This is just a tremendous opportunity for us,’ says University of California Berkeley law professor Goodwin Liu. He’s the new chairman of the board at ACS. ‘Whereas I think in the last seven or eight years we had mostly been playing defense, in the sense of trying to prevent as many — in our view — bad things from happening, now we have the opportunity to actually get our ideas and the progressive vision of the Constitution and of law and policy into practice,’ Liu says.” (Ari Shapiro, “Balance of Power Swings to Liberal Legal Group,” NPR, 01/03/09)

Liu Believes “Liberals” Should Not Be “Defensive” About How They Interpret Constitution, But Embrace It. “For too long, liberals … have been defensive about how the Constitution should be interpreted. But an examination of the document itself and the way its principles have been applied over time reveals that the progressive view is in fact the one that has prevailed.” (Goodwin Liu & Pamela Karlan, “It Is A Constitution We Are Embracing,” American Constitution Society, 9/3/09)

LIU WANTS TO USE CONSTITUTION TO CODIFY LIBERAL SOCIAL AGENDA

Liu Wants To Bring “Reformation Of Thought” On “Welfare Rights” Through “Constitutional Adjudication.”  “In that spirit, I attempt in this Article a small step toward ‘reformation of thought’ on how welfare rights may be recognized through constitutional adjudication in a democratic society.” (Goodwin Liu, “Rethinking Constitutional Welfare Rights,” Stanford Law Review, 11/2008)

Liu Attacks Current Supreme Court For Having “Limitations On Institutional Competence,” Blames Court For Not Creating Rights To “Entitlements.” “Whatever answer a court might give to whether the Constitution guarantees minimum entitlements to social and economic welfare, it will be encumbered by considerations of judicial restraint arising from the countermajoritarian difficulty and limitations on institutional competence.” (Goodwin Liu, “Education, Equality, and National Citizenship, 116 Yale Law Journal 338 (2006))

• Liu Believes Supreme Court Should Create “Rights To Education, Welfare, And Other Government Aid.” “Because the Supreme Court has refused to squarely recognize fundamental rights to education, welfare, and other government aid, we are taught to believe that no substantive obligations exist in these areas.” (Goodwin Liu, “Education, Equality, and National Citizenship, 116 Yale Law Journal 338 (2006))

Liu Believes The Fourteenth Amendment Should Be Interpreted More Broadly To Give Citizens Rights To “Expanded Health Insurance, Child Care, Transportation Subsidies, Job Training, And A Robust Earned Income Tax Credit.” “On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.” (Goodwin Liu, “Education, Equality, and National Citizenship, 116 Yale Law Journal 409 (2006))

LIU ADVOCATES FOR SLAVERY REPARATIONS

Liu Supports Reparations For Slavery, Calling It A “Moral Duty.” “And so, what I would do, I think I would draw a distinction between a concept of guilt, which locates accountability in a sort of limited set of wrong-doers, and, on the other hand, a concept of responsibility, which is, I think, a more broad suggestion that all of us, whatever our lineage, whatever our ancestry, whatever our complicity, still have a moral duty to … make things right.” (Goodwin Liu, Discussion On The Film “Traces Of The Trade,” 5/6/08) 

Liu Believes Americans That Did Not Descend From Slaves Need “To Give Up Something,” Either A Seat At An Ivy League College Or “Our Money.” “And I think, to add one more point on top of that, the exercise of that responsibility … necessarily requires the answer to the question, ‘What are we willing to give up to make things right?’ Because it’s gonna require us to give up something, whether it is the seat at Harvard, the seat at Princeton.  Or is it gonna require us to give up our segregated neighborhoods, our segregated schools?  Is it gonna require us to give up our money?” (Goodwin Liu, May 2008 Discussion On The Film Traces Of The Trade, The National Review, 3/23/10) 

LIU FAVORS AFFIRMATIVE ACTION IN “GOVERNMENTAL DECISION MAKING”

Liu Favors “Race-Conscious Governmental Decision Making.” “I think that, in some of the real hot-button areas related to … the race-conscious school integration case, conservatives have been fighting for a number of years now to try to consolidate the doctrine in these areas, in the race area, to eliminate the use of race-conscious governmental decision-making in all areas.” (“Key Decisions Mark Shift in Supreme Court,” PBS’ “NewsHour”,  6/29/07)

Liu Wants Local School Districts To Have The Right To Use Race As A Factor In Enrollment. “UC Berkeley law professor who supports school districts’ right to consider race in enrollment described the cases as the final chapter of Brown vs. Board of Education. In the last few decades, ‘the court has basically ended the business of judicially enforced racial integration,’ said Goodwin Liu, who filed arguments in the case on behalf of 19 former University of California campus chancellors. ‘Now the only question is whether school districts on their own accord can integrate. If not, it’s fair to say that from the constitutional law standpoint, we’ve given up on racial integration of public schools.’” (Bob Egelko, “School Integration Back Before Supreme Court,” The San Francisco Chronicle, 12/03/06)

•  And Believes Courts Need To Continue Use Race As A Factor “To Achieve School Integration.” “Nothing in the opinion establishes or suggests colorblindness as a legal principle, and for almost 30 years after Brown, the Supreme Court repeatedly said that using race to achieve school integration is consistent with Brown. The legal debate about colorblindness versus color-consciousness is a more recent phenomenon, fueled by cases in the last 20 years cutting back on government uses of race.” (Goodwin Liu, “The Meaning Of Brown vs. The Board,” The Los Angeles Times, 12/25/06)

Liu Also Supports Affirmative Action In College Application Process. “Despite 30 years of affirmative action, white students continue to dominate most of the nation’s best colleges and all of the top law and medical schools. Against this backdrop, not even the most ardent foe of affirmative action would say that it stamps white applicants with a badge of racial inferiority. Indeed, just as athletic and geographic preferences do not denigrate applicants who are uncoordinated or suburban, affirmative action is not a policy of racial prejudice.” (Goodwin Liu, “The Myth and Math of Affirmative Action,” The Washington Post, 4/14/02)

AND LIU WANTS TO DENY GOVERNMENT THE TOOLS TO FIGHT CRIME, WAR ON TERROR

Liu Criticized Justice Samuel Alito’s Rulings In Favor Of Strong Law Enforcement. “That concern is Judge Alito’s lack of skepticism toward government power that infringes on individual rights and liberties. Throughout his career, with few exceptions, Judge Alito has sided with the police, prosecutors, immigration officials, and other government agents ….In this area, Judge Alito’s record is at the margin of the judicial spectrum, not the mainstream.” (Prof. Goodwin Liu, Testimony On Nomination Of Judge Samuel Alito To The Supreme Court, Senate Judiciary Committee, 01/12/06)

Liu Fought Against Alito’s Nomination Because He Did Not Want To Give Government Tools To Fight War On Terror. “His deferential instinct toward government is at odds with the Supreme Court’s vital role in protecting privacy, freedom, and due process of law, and it deserves special concern in light of the questionable tactics being used to fight the War on Terror.” (Prof. Goodwin Liu, Testimony On Nomination Of Judge Samuel Alito To The Supreme Court, Senate Judiciary Committee, 01/12/06)